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Third Circuit remands Super Bowl indecency fine

The FCC’s campaign against broadcast indecency was dealt another major blow as the Third Circuit Court of Appeals remanded a $550,000 fine assessed by the agency against the CBS broadcast network for the airing of singer Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl telecast. The decision, handed down Monday by a threejudge panel, mirrors a similar ruling last year by the Second Circuit Court of Appeals, which overturned a series of FCC orders that proclaimed the airing of “fleeting expletives” on live television to be indecent. (Earlier this year, the U.S. Supreme Court agreed to review that ruling at the request of the Bush Administration acting on behalf of the FCC.) During the 2004 Super Bowl halftime show, the incident in question occurred when pop singer Justin Timberlake grabbed at Jackson, resulting in the inadvertent split-second exposure of Jackson’s right breast on live television. After receiving thousands of viewer complaints, the FCC determined that CBS-owned affiliates had violated the agency’s broadcast indecency rules in airing the “wardrobe malfunction.” In remanding the fine, however, the Third Circuit concluded that the FCC’s decision to hold CBS liable for televising a fleeting indecent image constituted a departure from the FCC’s long-standing “restrained” policy of holding broadcasters liable only for indecent content that is deemed so “pervasive as to amount to ‘shock treatment’ for the audience.” While criticizing the FCC for failing to provide adequate notice of such a policy change, the court also found that Jackson and Timberlake were independent contractors over which CBS lacked control, thus countering FCC claims that the singers acted as network employees. As such, Chief Judge Anthony Scirica observed that, “the First Amendment precludes the FCC from sanctioning CBS for the indecent expressive conduct of its independent contractors.” CBS applauded the decision as “an important win for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material.” Although the National Association of Broadcasters also praised the court for providing “badly needed clarity on efforts to regulate broadcast content,” FCC Chairman Kevin Martin maintained: “I continue to believe this incident was inappropriate, and this only highlights the importance of the Supreme Court’s consideration of our indecency rules this fall.”